Before the COVID-19 outbreak, state sovereignty was viewed as a check on federal encroachment. Americans welcomed this limit on centralized power.
But amid the ongoing panic, the coercive effects of unbridled executive authority are on display in the states themselves. This authoritarian streak is evident in New York, California, and Michigan, and my home state, Pennsylvania, where Democratic Gov. Tom Wolf’s shutdown orders—enforced through emergency powers—have flung economic shrapnel.
Wolf’s restrictions, some of the most draconian in the country, have inflicted the Keystone State’s communities with mass unemployment, social disorder, widespread despair, and overall economic decline. Other states should view Pennsylvania’s course as an alarming model for how their own governors and local officials can seize unlimited “emergency” executive governance.
In response to Wolf, Pennsylvanians—beginning with their representatives in the state’s General Assembly—are pursuing a voter-driven remedy that could serve as a national model. A constitutional amendment, placed before voters this year, would check a governor’s unilateral, indefinite emergency powers. If approved, Pennsylvanians could prevent an encore of what unfolded this past year, and inspire other states to follow their lead.
Of course, there’s no denying that a governor plays a crucial role in an emergency. This was true last spring, when COVID-19 required a top-level governmental response. In such instances, the great advantage of our republic—its separation of powers—temporarily becomes a liability.
Emergency powers are therefore granted to an executive—the president, governor, or even a mayor—to act decisively in defense of citizens. In Pennsylvania, state law caps the duration of emergency declarations to 90 days but places no limit on the number of times a governor can unilaterally renew them.
Unfortunately, Pennsylvania is paying the price of this policy. Since last March, Wolf, wielding his unchecked power, has extended the disaster declaration by fiat three times. During that period, Pennsylvanians suffered the social and economic costs of policies, including lockdowns, that enforced mass business closures. Although lawmakers in both parties have challenged Wolf’s arbitrary decision-making and lack of transparency, the governor still holds veto power.
Since last summer, for example, the General Assembly passed 10 bills to correct Wolf’s pandemic response. While Wolf eventually enacted many of these bills’ changes, he only withheld his veto pen once, when lawmakers unanimously passed a transparency bill.
This pandemic-era governance of a powerful executive, backed by a Democratic-majority state Supreme Court, is unsustainable. So, beginning last summer, the General Assembly commenced a process that would preserve checks and balances while also ending the state’s endless state of emergency.
Through a constitutional amendment, this process would restore lawmakers’ oversight of a governor’s emergency decision-making. In short, the amendment would allow the General Assembly to prevent a governor from extending a disaster declaration beyond 21 days without lawmakers’ approval.
The state’s constitutional amendment process, which doesn’t require a governor’s signature, commenced when lawmakers passed Senate Bill 1166 in July 2020. But any proposed constitutional amendment requires passage in two consecutive legislative sessions.
That’s why the General Assembly approved Senate Bill 2 last week. The bill, sponsored by Senate Majority Leader Kim Ward, completes the legislature’s role in the constitutional amendment process. Voters will now have their say at the ballot box in May.
As a result, Pennsylvanians will soon vote on restoring their civil liberties by imposing checks on a governor’s emergency powers. If the constitution is amended, future governors can still respond in crises, but not indefinitely. Instead, after 21 days, a governor will require the approval of the people’s representatives in the legislature.
Following the disastrous shutdowns in states like New York and New Jersey, lawmakers may want to emulate Pennsylvania’s constitutional remedy. Meanwhile, in other states like California, the recall procedure seems to be an avenue to restrain the governor’s worst excesse, although statutory limitations couldn’t hurt.
In this tumultuous period, Americans must act to preserve the rule of law before executive overreach spirals out of control. The best way to defend our freedoms is by strengthening our cherished federalist system.
Of course, global emergencies are not outside the scope of the founders’ foresight. But as Pennsylvania shows, protecting the vulnerable shouldn’t require an unprecedented loss of civil liberties.